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July 29, 2015 / 13 Av, 5775
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Pasul Esrog

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After davening on Hoshana Rabbah, Mr. Hadar fondly packed away his esrog. “Maybe I’ll fill it with cloves and use it for spices at Havdalah,” he thought. “Or maybe I’ll make jelly out of it.”

Mr. Hadar then saw a sign in shul, posted by Rabbi Posek, which read: “I am collecting esrogim to teach students in my kollel about the laws of esrogim. The esrogim will be made into jelly afterwards and distributed as a segulah to families.”

“That’s a good use!” exclaimed Mr. Hadar. After Sukkos he brought the esrog to Rabbi Posek.

Rabbi Posek thanked Mr. Hadar for the esrog. As he took it, though, he could not help but notice a clearly evident black spot toward the top of it.

“Is this the esrog you used all Sukkos?” Rabbi Posek asked Mr. Hadar.

“Sure, made a berachah on it every day,” answered Mr. Hadar. “Isn’t it beautiful? Big and yellow and perfectly shaped, with ridges all around! Just has one black spot on it. That doesn’t matter, does it?”

“Actually, the black spot is a significant problem,” replied Rabbi Posek gently. “All of the things you mentioned are hiddurim [enhancements], but an evident black spot toward the top renders the esrog pasul [invalid].” (O.C. 648:12)

Mr. Hadar was crestfallen. “What should I do now?” he asked Rabbi Posek.

“You tried your best,” encouraged said Rabbi Posek. “But there’s nothing like learning the laws ahead of time. Now you’ll know for next year.”

“What about the money I paid?” Mr. Hadar asked.

“Take the esrog back to the seller and tell him you were told the esrog was pasul,” replied Rabbi Posek. “See if he’ll refund your money.”

Mr. Hadar returned to the seller. “I bought this esrog from you and found out today that it’s pasul,” he said. “I’d like my money back.”

Now you’re asking me?!” asked the seller incredulously. “Sukkos was over a week ago! You used the esrog already, and there’s nothing to do with it now; it’s practically worthless.”

“What difference does that make,” responded Mr. Hadar. “You sold me defective merchandise; I’m entitled to a refund.”

“But you had a chance to check the esrog all Sukkos,” objected the seller. “If you chose not to check it, you forfeited your right to the money.”

“I didn’t forfeit any rights; I assumed what you sold was kosher,” replied Mr. Hadar. “I suggest we consult Rabbi Dayan!”

“Happy to,” said the seller. “But at this point, I really don’t see any reason to return the money.”

Mr. Hadar and the esrog merchant went to Rabbi Dayan. “I bought this esrog before Sukkos and was just told it was invalid on account of an evident black dot,” Mr. Hadar said. “Must the seller refund my money?”

“If the esrog was pasul when you bought it before Sukkos, the seller would have to return the full value you paid,” said Rabbbi Dayan. “The merchandise was defective, so the sale was a mekach taus [faulty purchase]. If the p’sul [disqualification] could have occurred later, though, he would not have to.”

“What about the fact that Mr. Hadar had ample time to check the esrog?” asked the seller.

“This point is relevant to the laws of ona’ah, mispricing,” answered Rabbi Dayan. “If the aggrieved party, who was overcharged or underpaid, had sufficient opportunity to verify the price afterwards and did not do so, he forfeits his chance for redress. [C.M. 227:7-8]

“Regarding defective merchandise, though, even if the person did not bother checking, he is entitled to a refund, since the sale from its very inception was faulty. Of course, if it is a common commercial practice [minhag hamedina] not to return after a certain point , the practice is binding.” (C.M. 232:3,19; Pischei Teshuvah 232:6)

“And if it’s not clear when the esrog became pasul?” asked Mr. Hadar.

“Then whoever is in possession of the money has the upper hand,” replied Rabbi Dayan. “Since Mr. Hadar already paid, we would assume it became pasul in his possession. Thus, if there was a gouge that could have occurred during Sukkos, the seller would not have to refund the money. (C.M. 232:11,16)

“Does it make a difference whether the p’sul of the esrog was biblical or rabbinic?” asked the seller.

“Where someone sold non-kosher food, a distinction is made whether the prohibition was biblical or rabbinic,” answered Rabbi Dayan. “There, at least, the customer had the benefit of eating the food. However, in our case the usage of the esrog was to fulfill the mitzvah. Even if the disqualification is rabbinic, Mr. Hadar could not fulfill his mitzvah properly. Therefore, the sale is faulty and he is entitled to a refund.”

About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.


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